People v. Clark
| Decision Date | 05 October 2016 |
| Docket Number | B258237 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. RONNIE JAY CLARK, et al. Defendants and Appellants. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SA084531)
APPEAL from a judgment of the Superior Court of Los Angeles County. Elden S. Fox, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant Ronnie J. Clark.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant Tommie Lee Dotson.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant Richard L. Sims.
Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant Tony D. Theus.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant Davonte Jamal Grace.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
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In June 2013, five men committed a "smash and grab" robbery at the jewelry counter in the Fox Discount Store (also known as the Fox swap meet); three other men acted as getaway drivers. Following a joint jury trial, appellants and defendants Davonte Jamal Grace, Richard Lamar Sims, Tony Diamante Theus, Tommie Lee Dotson, and Ronnie Jay Clark (collectively defendants) were convicted of two counts of second degree robbery arising out of the incident. On appeal, they contend: (1) admitting evidence of the defendants' home addresses and the relationship of those addresses to one another was prejudicial error (Clark, Dotson, Grace, Theus); (2) admitting "composite exhibits" was prejudicial error (Grace, Theus); (3) refusing to take judicial notice that the prosecutor obtained but did not introduce into evidence defendants' cell phone records was prejudicial error (Dotson, Clark, Grace, Theus); (4) the robbery convictions were not supported by sufficient evidence (Clark, Theus, Sims); (5) there was prosecutorial misconduct (Dotson, Grace, Sims, Theus); (6) there was instructional error (Sims); and (7) there were sentencing errors (Dotson, also the People). In addition to these specific contentions, each defendant also purports to join in all of the contentions of each codefendant.1 Each also contends the errors were cumulatively prejudicial, even if individually harmless. We affirm the judgments.
Defendants were jointly charged by second amended information with the second degree robberies of Song Kuk Cho (count 1) and Hae Ja Cho (count 2), the husband and wife owners of the Fox Jewelry Store; various prior conviction enhancements were also alleged. In May 2014, following a joint jury trial, all five defendants were convicted on both counts.2 Each defendant subsequently admitted the alleged priors. Clark was sentenced to 8 years in prison; Dotson to 16 years, Grace to 21 years, Sims to 10 years, and Theus to 17 years. Each timely appealed.
Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357), the evidence established that surveillance cameras at the Fox Discount Store recorded five African-American men wearing ski masks or hoods pulled up around their faces enter the building at about 4:22 p.m. on June 26, 2013, smash glass jewelry display counters, grab merchandise and run out of the store. In addition to the five men who entered the store, the perpetrators included the drivers of three different getaway vehicles (a blue Chevy Astro van, a white Dodge Charger and a black Honda). Within a short time, all three vehicles had been located at three different locations and seven suspects were in custody. The suspects in custody included the five defendants and two other men - John Hughes and William James Nichols. When the Charger was stopped by police, defendant Sims was the driver, Hughes and defendants Grace and Dotson were passengers. Nichols was the driver of the Honda and defendants Clark and Theus were passengers.
Mr. and Mrs. Cho, owners of the Fox Jewelry Store, were both working on the afternoon of June 26, and the display cases were full. At about 4:20 p.m., Mr. Cho was behind the counter concentrating on repairing a piece of jewelry when he heard breaking glass and someone scream. Looking toward the sound, Mr. Cho saw at least four masked men; two broke the glass on the front of his display cases, one used a hammer. Mr. Cho grabbed a golf club he kept behind the counter with the intention of swinging it at the robbers to defend himself and his property. But when he stepped forward, one of the men sprayed something in Mr. Cho's face and eyes; it felt like he was "hit by fire"; his eyes burned and he had difficulty keeping his eyes open. Notwithstanding his impaired vision, Mr. Cho swung the golf club, but it hit a post and broke.
The robbers ran out of the store with merchandise they had taken from the broken display case. On their way out, they dropped some of the stolen goods on the ground. Mrs. Cho ran after the robbers. When she did not return after several minutes, Mr. Cho became concerned for her safety and ran after her. By the time Mr. Cho reached the security gate leading to the parking lot, his wife was there but the robbers were gone.
Because of the masks and disabling spray, Mr. Cho could not identify anyone as a perpetrator. Police showed Mr. Cho a can of bear spray and a hammer found among the debris at the store.
Mrs. Cho was behind the counter, helping a customer, when she heard a lady scream, Mrs. Cho saw four or five men wearing ski masks enter the store and run towards her counter. Mrs. Cho screamed, She tried to stop the men from breaking the display cases by putting her hands over the counter. When Mrs. Cho climbed onto the display case in her efforts to stop them, she heard one of the men say, Mrs. Cho was able to grab the clothing of one of the men, but lost her grasp when she was sprayed. Mrs. Cho believed her reaction to the spray was less severe than her husband's because her eyes were protected by eyeglasses.
Mrs. Cho ran after the robbers as they fled the store. When she reached the security gate, Mrs. Cho saw that all but one of the robbers was already in a parked van, which she described as having a blue bottom, light top and no rear license plate; the van's motor was running and a man wearing blue jeans and a beige colored top was sitting in the driver's seat; both the sliding passenger door and the driver's door were open. Mrs. Cho saw the last robber to leave the store, the one Mrs. Cho struggled with at the end, get into the front passenger seat of the van; as soon as he did, the van drove away.
That afternoon, Ivana Paniagua and her friend, Keny Clavel, were walking from a restaurant towards Paniagua's car in the parking lot of the Fox swap meet when a blue van drove by so quickly that Paniagua and Clavel had to step back to avoid being hit. Paniagua described the van as an old-fashioned "Scooby Doo" style van with sliding passenger doors, blue and light blue with patches of rust and an advertisement where the van's license plate should have been. The driver was an African-American man in his mid-20's, with a "fade" haircut and multiple tattoos on the right side of his face and neck, wearing a black T-shirt.3 The African-American man in the front passenger seat seemed younger than the driver; he was wearing a hoodie pulled up over his head so that only his nose was visible; the words "Cali Life" were printed on the front of the hoodie.
After the van came to an abrupt stop in front of the gates to the swap meet, the sliding doors opened and several men emerged and went into the swap meet building. Moments later, while Paniagua was getting a drink at a food truck parked in the parking lot, an Asian man ran out of the building yelling, Realizing something was wrong, Paniagua took cover behind a vehicle. From her hiding place about 10 feet away from the blue van, Paniagua saw four or five African-American men run through the gates and leap into the van; all were wearing dark colored shorts, black hoodies, black leather gloves and black or gray ski masks; three of them were wearing basketball shorts under their outer shorts (visible because the outer shorts were sagging); most werecarrying something in their hands, possibly hammers. Paniagua estimated they were in their 20's. The first man out of the gate was very tall; he was wearing army shorts, Air Jordan shoes and a ski mask; he was carrying what looked like a gray silk pillow case. As the other men followed, this first man stood outside the van saying, It was Paniagua's impression that he was "guiding" the others. After the van's sliding door closed, the man who had been guiding the others jumped into the front passenger seat and the van drove away at a high speed; it turned right onto Sunset Avenue. Two Asian men and three Asian women ran into the parking lot; they were all crying and had "blood in their eyes." Clavel called 911 while Paniagua tried to help the victims wash their eyes with milk.
On the day of the robbery, Sean Peoples lived about one-half mile from the Fox swap meet. At about 4:30 p.m. that day, Peoples alerted police to a blue Chevrolet Astro van abandoned on his street, which...
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